[From Science, February 1972]

NEWS AND COMMENTS

"The public's need for information is especially great in the field of science and technology, for the growth of specialized scientific knowledge threatens to outstrip our collective ability to control its effects on our lives. It

would defeat . . . the purposes of the Act to withhold from the public factual information on a federal scientific program whose future is at the center of public debate."

So ruled David L. Bazelon, chief judge of the U.S. Court of Appeals in the District of Columbia, in a decision that ultimately flushed out a confidential scientific study of the supersonic transport compiled for the President's science adviser. The act that Bazelon interpreted is the Freedom of Information Act, an important but underexposed statute which formally enshrines the public's right to know what its government does. The act stipulates that every government agency shall, with certain specified exceptions, make its records promptly available to any person on request.

The willingness with which government officials would reveal the private records of their activities to anyone who asked, and promptly at that, is not difficult to imagine. The act did not have an easy birth-Congress gestated it for 11 years and the Department of Justice has made determined attempts first to throttle the infant law, and more recently to emasculate it when it began to show signs of potency.

How well is the Freedom of Information Act working? "If an applicant appeals to the director of an agency and shows willingness to go to court, he will generally get his information," says an aide to Representative William S. Moorhead (D-Pa.), chairman of the House committee that oversees the act. Probably the vast bulk of requests for information addressed to the federal government by press and public are satisfied without recourse to the Freedom of Information Act and, judged by standards elsewhere, the U.S. government is a paragon of open-handedness. Nonetheless, Congress found it necessary to pass the act, and there exists an

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important category of information supposedly within purview of the act that is not easily come by. Behavior under the act varies widely from agency to agency-two of the most recalcitrant, in the opinion of public interest groups, are the Food and Drug Administration (FDA) and the Department of Agriculture. The Environmental Protection Agency (EPA), on the other hand, seems to be adopting a more liberal interpretation. The sticking point at which many bureaucrats start to deny requests under the act is with information that reflects in any way on the internal workings and performance of the agency.

Delays and Evasions

The Freedom of Information Act has received rather little judicial attention since it came into force on 4 July 1967 and its eventual impact is hard to assess until further precedents are established. But several weaknesses are already apparent. By and large, government officials are able, when they wish, to thwart the intent of the law simply by delay. A requester of information can wait up to 2 years or more before all the administrative remedies have been exhausted and a case has come to court. Few newsmen have that kind of time to spare. For this, among other reasons, of more than 200 cases brought under the act, fewer than 10 have been filed by newspapers, which were envisaged as the chief beneficiaries of the act.

The principal users of the law are corporations, which have the time and money to make it work for them, and public interest groups representing the consumer and environmentalist movements. The latter have won some famous victories, such as the release of a confidential report on the supersonic transport and, more recently, the publication of environmental impact statements on the Cannikin underground bomb test at Amchitka. Equally important were two cases concerning meat inspection records and pesticide registration, which were won by Harrison Welford, a consultant to Ralph Nader's Center for the Study of Responsive

Law, against the Department of Agriculture. But the impact of these and other precedents has fallen far short of shaping the act into an effective instrument of public information.

The most vocal critics of the act are the public interest groups, which have found their requests for seemingly innocuous information, such as scientific data, repeatedly rebuffed by the government. "It's a very sketchy law which was badly drafted to begin with, and it's not terribly useful," says an attorney with the Environmental Defense Fund. According to Harrison Welford of the Nader center, the act has not lived up to its initial promise because of the evasion techniques developed by government officials. In Sowing the Wind, a study of Department of Agriculture policies on meat and pesticide regulation, Welford lists some of the common tactics used by agency officials for thwarting the act.

Contamination tactic: Unclassified material that may prove embarrassing is mixed with a few items of information that can be withheld under the act, such as trade secrets, and the whole file is labeled as classified.

► Specificity tactic: The agency delays replying to a request for several weeks and then states that the request is not specific enough.

Search fee tactic: Even if the agency concedes that the information should be made public, it may impose an arbitrarily high fee for collecting it. ►Trade secrets tactic: The formula of a pesticide or other chemical is a trade secret that is properly exempt under the act, but the agency applies the exemption to all of the other information provided by the manufacturer.

Representative John E. Moss (DCalif.), the author of the act, intended it to represent "an in-between solution which will guarantee the right of every citizen to know the facts of his government while protecting that information which is necessary to the functioning of government." Nine categories of information are protected by the act, including matters of national security, trade secrets, inter- and intra-agency memoranda, files compiled for law enforcement purposes, and matters specifically exempted from disclosure by other statutes. The legislative intent of the act was to make disclosure of information the general rule, not the exception, and to place on the government the burden of justifying the withholding of a document.

The bill passed the House to the
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sound of a 307 to 0 vote and many elevated observations on the people's right to know. Representative Donald Rumsfeld (R-Ill.), for example, now a counselor to the President, described the act as one of the most important measures to be considered in Congress in 20 years. The bill, he said during the House debate on 20 June 1966, "Will make it considerably more difficult for secrecy-minded bureaucrats to decide arbitrarily that the people should be denied access to information on the conduct of government or on how an individual government official is in handling his job."

The bureaucrats have not suddenly changed their mental habits in the Administration of which Rumsfeld is an eminent member. Here is a not untypical example of how an unwelcome request for information may be handled. On 7 July 1970, Dale Hattis, a researcher at the Stanford University School of Medicine, asked the FDA for the data on which its officials assessed the safety of various food additives and pesticide residues. It took the FDA 11 months and 28 days to compose a reply, in which Hattis was told that he should be more specific. (This is an identical version of the specificity tactic used in the Department of Agriculture.)

Hattis then narrowed his request down to data on a single food additive, sodium nitrite. Sam D. Fine, FDA associate commissioner for compliance, replied that "toxicological and other technical information is valuable commercial property that is regarded as confidential information." Hence the data on sodium nitrite safety supplied by the manufacturers counts as a trade secret and is exempt from disclosure under the act, Fine told Hattis (the trade secrets tactic). The FDA possesses some toxicological data on sodium nitrite not supplied by manufacturers; Fine offers this data for a compilation and copying fee of $99.50 (the search fee tactic). Hattis has enlisted the advice of an attorney at the Environmental Defense Fund, which is now contemplating bringing suit against the FDA under the act.

"I have always believed that freedom of information is so vital that only the national security, not the desire of public officials or private citizens, should determine when it must be restricted," President Johnson proclainted on signing the act into law. Another example of the government's interpretation of the act is the response to a request by Carolyn Morgan, a 4 FEBRUARY 1972

Washington, D.C., housewife, for the toxicological data relating to birth control pills. Replying on behalf of the FDA, Roger O. Egeberg, then assistant secretary of Health, Education, and Welfare, told Morgan that some of the information she requested was protected under the act by exemption number 3 (matter exempted by other statutes), number 4 (trade secrets and confidential), number 5 (intra-agency memoranda), and number 6 (personnel and medical files). (It is a standard stratagem to claim as many exemptions as possible-in a court case there's more chance that one may stick.)

Egeberg proceeded to point out that the exempt and nonexempt information in the material Morgan had requested were mixed together in 1929 files, and that to separate the two categories would cost $12,600 in labor (a combination of the contamination and search fee tactics). There would also be a copying charge of 25¢ per page, and an advance fee of $5000 would be required. "We think that such a search would be wasteful for both parties," Egeberg opined to Morgan. Morgan has since brought a suit against the FDA which is now in the appeal stage.

One reason why agencies have been able to run circles around the law is that the government's campaign against the threat to bureaucratic secrecy is skillfully generaled by the Justice Department. When the act first came into force, a memorandum was issued by the attorney general (then Ramsey Clark) which in effect instructed the agencies how to make the broadest interpretations of the nine exceptions. The memo was also not above putting the agencies up to such tricks as charging fees, covering indirect costs as well as copying, in order to "discourage frivolous requests."

The effect of these instructions as they percolated down through government has been noted by Wayne Winters, editor of the weekly Epitaph, published at Tombstone, Arizona. When the act was first passed, Winters successfully obtained internal documents from the local offices of the Forest Service at Tucson and Albuquerque. (The documents concerned the Forest Service's methods of evicting gold miners from forest lands. They form the basis for an article by Winters in the 27 March 1969 issue of the Tombstone Epitaph entitled "A Harassed Miner is Blown to Kingdom Come-Red Run Their Hands-Bureaucrats Drove Miner to Death Via

Continued Harassment”.) Later the local Forest Service offices took a more restrictive view of the Freedom of Information Act, Winters told Science: "They became evasive because information came out of Washington telling them how to get around the law. We have a law we didn't have beforeI don't think any of us uses it as much as we ought to."

Justice Department Defense

Under Justice Department tutelage, the agencies interpreted the act's exemptions as broadly as possible in order to discourage intruders. But the courts often construed the exemption more narrowly and the government started to lose a few cases, including one in which the Consumers Union sued the Veterans Administration for the results of tests conducted on various brands of hearing aids. More seriously, the summer of 1969 was the first time that students working for the Nader Center-Nader's raiders-descended on the agencies in massive force. A second memo was dispatched from the Justice Department to the general counsels of all federal agencies, calling for a change in government tactics. The memo, dated 8 December 1969, was drawn up by two assistant attorneys general, William H. Rehnquist, now a justice of the Supreme Court, and William D. Ruckelshaus, now the administrator of the EPA. "Although the legal basis for denying a particular request under the Act may seem quite strong to an agency at the time it elects finally to refuse access to the requested records," warned the memo, "the justification may appear considerably less strong when later viewed, in the context of adversary litigation, from the detached perspective of a court and from the standpoint of the broad public policy of the Act." The memo, in so many words, warned that agencies should consult with the Justice Department before letting anyone drag them to court, lest a body of precedents be built up in favor of the public and against the government. The memo concluded with an oblique reference to the consumer movement's growing curiosity about agency methods of regulation and an invitation for agencies to collaborate on methods of meeting the threat ("If the activities of your agency involve testing or information pertaining thereto, we would welcome any statements of experience, policies or views which you may care to provide").